VFA turns 12 next week amid unresolved issues

This is what the US embassy in Manila seems to be telling is when it recently said that the VFA was working well, 12 years after it was ratified by the Philippine Senate as a treaty.

The RP-US Visiting Forces Agreement turns 12 years next week amid continuing controversies on its implementation in the Philippines. The military agreement was ratified as a treaty by the Philippine Senate in May 27, 1999. It has not been ratified by the US Senate but the American government says it considers the VFA a treaty. (We need to stress that the approval of the VFA itself smacks of inequality. While the Philippines ratified it as a treaty, the US Senate did not. This was raised in the petition before the Supreme Court but the court said that the VFA was merely an implementation of an earlier agreement, the RP-US Mutual Defense Treaty. It’s a rather untenable argument since the RP-US MDT could not have envisioned the existence of the VFA since it was approved more than 40 years before the VFA).

The US embassy’s patently self-serving and misleading statement to the effect that there are no problems with the VFA is meant to retain the VFA in its present form. It’s meant to perpetuate the lopsidedness of this agreement.

However, the fact that there is an ongoing review of the VFA by Malacanang, the first by the executive in the 12 years of the VFA, shows that the pact is not without problems.

The Palace review has focused on criminal jurisdiction and custody of US troops who have violated Philippine laws. The experience in the Subic Rape case shows the basic one-sidedness of this pact. A US soldier who has violated Philippine law will remain in US custody during trial and even after a verdict has been issued. The end of judicial process, according to the US embassy, will only take place when a final ruling has been issued by the highest court, and it is only then will the US personnel be turned over to a PH detention facility. This resulted in the transfer of then convicted rapist Daniel Smith from the Makati Jail to the US embassy, with concurrence by our own Department of Foreign Affairs and Department of Interior and Local Government. It was an embarrassing incident, one which the Supreme Court declared as illegal or “not in accordance with the VFA”.

But the DFA did not ask the US embassy to immediately comply, and the US embassy had no intention of immediately complying with the SC ruling. In the intervening events, Smith was acquitted by the Court of Appeals, and he immediately left the country. The enforcement of the SC ruling became moot, and once again, the US government made a mockery of PH sovereignty and judicial processes.

It was this utterly flawed situation which the Palace review apparently hopes to address. It was promised by no less than the president during his campaign. So far, nearly a year into the Aquino government, the results of this review, if any, have not been made public.

But it’s not just the problem of criminal jurisdiction and custody which should concern the Aquino government. The basic problem with the VFA is it is too vague and overbroad. It allows an unlimited number of US troops to enter the country and engage in unspecified activities for an unlimited duration of time.

The US troops are not required to go through Philippine immigration authorities, nor are they or their warships subject to inspection by customs and health officials. You’ll never know if the next warship that docks carries with it weapons of mass destruction.

In August 2009, US Defense Secretary Robert Gates announced unilaterally that some 600 US troops are staying in Mindanao indefinitely. It was again a slap on the face of PH sovereignty. The Arroyo government tried to remedy the situation by making it appear that the presence of US troops was requested by the PH government. The same was later on echoed by the US embassy. No proof of this request has ever been shown. No terms of the US troop presence were ever discussed. Moreover, such a request would go against the supposed nature of the VFA which only contemplates “visiting” US troops and not permanently stationed troops. But apparently the US government knows how to exploit the loopholes in the VFA which they themselves put. The US forces would simply be deployed on a rotational basis of every three months. So the soldiers go in and out of the country, but at any given time, there will always be 600 troops present all year round.

How long has this been going on? Since 2002, during the first Balikatan operations under the Arroyo government. By 2012, US troops have been permanently stationed in Mindanao for about a decade. The US troops were able to get virtual bases in Zamboanga, even without an actual basing treaty.

Why the Aquino government has not questioned this is obvious circumvention and violation of the constitutional ban on US bases remains a mystery. Or maybe the Aquino government doesn’t care if PH sovereignty is violated, just so we continue to get US military hand-me-downs, like that latest patrol boat we got from the Vietnam War era.

The US embassy has become a factory of lies for the retention of the VFA. However, it cannot find comfort in the Supreme Court decision that the VFA is constitutional. That ruling will not stand the test of time and will become untenable as new problems related to the VFA arise each year.

US troops are engaged in so many undefined activities in the country, especially in the name of the ‘war on terror’. We will not be surprised that US forces have engaged in actual combat operations similar to what they did in the raid against bin Laden in Pakistan. We would not be surprised if they operate secrete prisons or rendition facilities in the country, under cover of so-called counter-terror training.

The Palace review of the VFA is the first one announced by a chief executive in 12 years that the VFA has been in effect. The review should lead to the termination of the VFA. The pact is beyond redemption and is a violation of our sovereignty. We can definitely live without this one-sided agreement. The country will not collapse simply because we do not get US military junk and hand-me-downs.

It’s time Aquino assert national sovereignty and national interest and discard the myth of ‘special relations’, mutuality and reciprocity of the VFA.

That would be great, if only the current president is not so awestruck by US military might that he feels the need to board a US aircraft carrier in international waters, just so he could see fighter planes take off. ###

The first "visiting troops": U.S. Army General Samuel Sumner meets with the Sultans of Bayang and Oato, Philippines, 1902 (US Library of Congress, US COIN Guide, 2009)